Attorney fights probation violation charge

Former 49ers linebacker Aldon Smith’s long-running legal woes continued Friday as he was arraigned in Santa Clara County’s Hall of Justice for allegedly violating conditions of his probation by driving while drunk last year.

Smith was arrested Aug. 6 on three charges: hit-andrun, DUI with prior conviction and vandalism.

Smith’s defense hopes to dismiss probation violation charges on technical grounds: Defense attorney Joshua Bentley argued that the court should disregard evidence of Smith’s intoxication because it was collected after he signed a citation promising to appear in court on a later date — and therefore, according to Bentley, after Smith was free to leave police custody.

Judge John Garibaldi is still deliberating. A July 22 court date was set. If the judge decides to dismiss the evidence, Smith’s charges of probation violation will be dropped — but he will still face trial for his remaining two charges. Smith could be put in jail if he violated terms of his probation.

Smith was given three years of probation in July 2014 following convictions for drunken driving and possession of assault rifles. When Santa Clara County Superior Court Judge Daniel Nishigaya gave Smith probation rather than jail time, he stated that if Smith violated any conditions of his probation — which include abstaining from alcohol — he would go to jail immediately.

In the August incident — Smith’s fifth arrest, which finally led the 49ers to drop him from the team — Smith failed police officers’ sobriety and preliminary alcohol screening tests after allegedly crashing into a parked car outside his Santa Clara apartment complex. Furthermore, in video footage from that night introduced Friday by the prosecutor, Smith seemed to admit to drinking one shot of Tequila before driving.

The video was shot and alcohol tests were performed after the citation was issued at 10:47 p.m. But the prosecutor, Santa Clara County Deputy District Attorney Joanna Lee, argued that those pieces of evidence should still be considered because police never prevented Smith from leaving the vicinity. Lee countered that Smith stayed, spoke with police and subsequently incriminated himself of his own free will.

Smith was not present at Friday’s court session.